The mandament van spolie is a familiar legal solution that's been employed for many years in a marvellous array of cases, its main objective being the restoration of possession over property, while maintaining the public order. The thought process behind granting spoliation requests could be the principle that no man or woman should take the law into his/her own hands, if he/she does so, a Court will restore the status quo ante. The Court will do so without taking into consideration the merits of the particular matter, as the spoliation order can be regarded as a primary measure. The prerequisites which have to be met before a Court will grant a spoliation order is the following:
* It needs to be revealed that the applicant had free and undisturbed ownership prior to being deprived of his/her property; and * The candidate was unlawfully deprived of his/her possession without his/her permission.
The mandament van spolie can be used successfully in instances where the fought for property is corporeal, and possession very easy to establish. It's, however, a totally different matter where it concerns incorporeal property. Recent case law casts some light on the legal concepts relating to spoliation orders and incorporeal property.
* It needs to be revealed that the applicant had free and undisturbed ownership prior to being deprived of his/her property; and * The candidate was unlawfully deprived of his/her possession without his/her permission.
The mandament van spolie can be used successfully in instances where the fought for property is corporeal, and possession very easy to establish. It's, however, a totally different matter where it concerns incorporeal property. Recent case law casts some light on the legal concepts relating to spoliation orders and incorporeal property.
In the High Court of Appeal matter of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') maintained business being an isp, and in order to do its internet business it contracted with Telkom ('the Appellant') for the supply of telecom solutions. The Appellant furnished, set up and maintained a phone system as well as a bandwidth system on the property of the Respondent. The Appellant disconnected the services to the Respondent following a fee argument concerning a connectivity service. The disconnection was carried out from its own premises without entering the Respondent's premises. The Respondent claimed that it had a contractual right to use the systems as installed by the Appellant, and that it had been in peaceful and undisturbed control until the systems were disconnected. The Respondent thought of the disconnection of the systems as an unlawful deprivation of its use and possession of the systems, and for that reason introduced urgent request to Court for a spoliation order. The Court a quo awarded such instruction and ordered Telkom to hook up the services it had shut off.
On appeal, the trained Judge explained that a need has been felt for hundreds of years to protect incorporeal rights from being violated, and consequently the scope of the mandament van spolie was increased to allow protection of quasi possessio.
The Respondent quarreled it was subsequently in quasi possessio of the services by making use of it. The Court, in concern, was not persuaded by the Respondent's proposal, and discovered that the Respondent wasn't in possession of the services, since it had never been in possession of one of the mechanisms by which its products was attached to the Web. The Appellant didn't need to get into the premises of the Respondent to effect the disconnection, and indeed decided not to do this.
The High Court learned that the Respondent is in truth looking to force specific performance of a contractual right in order to solve a contractual disagreement. The mandament van spolie hasn't been available in such instances and there is no power for this kind of postponement of the solution. The High Court of Appeal upheld the appeal and the order of the Court a quo was put aside.
The same principle was applied to the matter of ATM Solutions v Olkru Handelaars. In this matter ATM Solutions ('the Applicant') had entered into a long lasting commitment with Olkru Handelaars ('the Respondent'). With regards to the contract the Respondent would install and sustain the Applicant's computerized ATM at its location. A few months following the installing of the ATM the Respondent however took away same and hooked up an ATM of another bank.
The Applicant helped bring an urgent application for a spoliation order to Court, contesting that through its ATM installed at the premises of the Respondent, it had had possession over the ATM, and the immediate area surrounding it. Later in Court the Applicant fought it had quasi possessio over the property which had surrounded its ATM before its extraction. The Court learned that the Applicant had simply a contractual right to always keep its ATM on the location of the Respondent, and the mandament van spolie wasn't the suitable treatment for the enforcement o
On appeal, the trained Judge explained that a need has been felt for hundreds of years to protect incorporeal rights from being violated, and consequently the scope of the mandament van spolie was increased to allow protection of quasi possessio.
The Respondent quarreled it was subsequently in quasi possessio of the services by making use of it. The Court, in concern, was not persuaded by the Respondent's proposal, and discovered that the Respondent wasn't in possession of the services, since it had never been in possession of one of the mechanisms by which its products was attached to the Web. The Appellant didn't need to get into the premises of the Respondent to effect the disconnection, and indeed decided not to do this.
The High Court learned that the Respondent is in truth looking to force specific performance of a contractual right in order to solve a contractual disagreement. The mandament van spolie hasn't been available in such instances and there is no power for this kind of postponement of the solution. The High Court of Appeal upheld the appeal and the order of the Court a quo was put aside.
The same principle was applied to the matter of ATM Solutions v Olkru Handelaars. In this matter ATM Solutions ('the Applicant') had entered into a long lasting commitment with Olkru Handelaars ('the Respondent'). With regards to the contract the Respondent would install and sustain the Applicant's computerized ATM at its location. A few months following the installing of the ATM the Respondent however took away same and hooked up an ATM of another bank.
The Applicant helped bring an urgent application for a spoliation order to Court, contesting that through its ATM installed at the premises of the Respondent, it had had possession over the ATM, and the immediate area surrounding it. Later in Court the Applicant fought it had quasi possessio over the property which had surrounded its ATM before its extraction. The Court learned that the Applicant had simply a contractual right to always keep its ATM on the location of the Respondent, and the mandament van spolie wasn't the suitable treatment for the enforcement o
The High Court learned that the Respondent is in truth looking to force specific performance of a contractual right in order to solve a contractual disagreement. The mandament van spolie hasn't been available in such instances and there is no power for this kind of postponement of the solution. The High Court of Appeal upheld the appeal and the order of the Court a quo was put aside.
The same principle was applied to the matter of ATM Solutions v Olkru Handelaars. In this matter ATM Solutions ('the Applicant') had entered into a long lasting commitment with Olkru Handelaars ('the Respondent'). With regards to the contract the Respondent would install and sustain the Applicant's computerized ATM at its location. A few months following the installing of the ATM the Respondent however took away same and hooked up an ATM of another bank.
The Applicant helped bring an urgent application for a spoliation order to Court, contesting that through its ATM installed at the premises of the Respondent, it had had possession over the ATM, and the immediate area surrounding it. Later in Court the Applicant fought it had quasi possessio over the property which had surrounded its ATM before its extraction. The Court learned that the Applicant had simply a contractual right to always keep its ATM on the location of the Respondent, and the mandament van spolie wasn't the suitable treatment for the enforcement of such contractual right. The Applicant's claim in essence was for specific performance of a contractual right, and the spoliation request was consequently denied.
It had been mentioned in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the reason for the mandament van spolie is the protection of possession or quasi possessio. It's however not the right solution for the administration of a contractual right. The mandament van spolie can't be used like a 'catch-all function' to shield all rights, irrespective of their nature. The nature of the professed right has to be identified, or characterised, to figure out whether there is genuinely a clear case of quasi possessio which deserves defense. The right held in quasi possessio must indeed refer to an incident of possession or control.
The result is that would be candidates for spoliation orders must determine the nature of the proclaimed right before taking application to Court, to identify whether or not the treatment sought-after is not really a contractual right that may be imposed using the principles of the law of contract.
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The same principle was applied to the matter of ATM Solutions v Olkru Handelaars. In this matter ATM Solutions ('the Applicant') had entered into a long lasting commitment with Olkru Handelaars ('the Respondent'). With regards to the contract the Respondent would install and sustain the Applicant's computerized ATM at its location. A few months following the installing of the ATM the Respondent however took away same and hooked up an ATM of another bank.
The Applicant helped bring an urgent application for a spoliation order to Court, contesting that through its ATM installed at the premises of the Respondent, it had had possession over the ATM, and the immediate area surrounding it. Later in Court the Applicant fought it had quasi possessio over the property which had surrounded its ATM before its extraction. The Court learned that the Applicant had simply a contractual right to always keep its ATM on the location of the Respondent, and the mandament van spolie wasn't the suitable treatment for the enforcement of such contractual right. The Applicant's claim in essence was for specific performance of a contractual right, and the spoliation request was consequently denied.
It had been mentioned in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the reason for the mandament van spolie is the protection of possession or quasi possessio. It's however not the right solution for the administration of a contractual right. The mandament van spolie can't be used like a 'catch-all function' to shield all rights, irrespective of their nature. The nature of the professed right has to be identified, or characterised, to figure out whether there is genuinely a clear case of quasi possessio which deserves defense. The right held in quasi possessio must indeed refer to an incident of possession or control.
The result is that would be candidates for spoliation orders must determine the nature of the proclaimed right before taking application to Court, to identify whether or not the treatment sought-after is not really a contractual right that may be imposed using the principles of the law of contract.
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